In the April *Atlantic Monthly* I raised doubts as to certain aspects of the
then uncompleted Nuremberg trial. Since that time I have had a chance to profit
from comments of Mr. Justice Jackson, Professor Sheldon Glueck, Professor Max
Radin, Professor Lon Fuller, an anonymous contributor to the July, 1946, *Law
Quarterly Review*, and other writers; I have also read reports of the trial and
have studied a summary of the judgment. This further investigation has led me
to resolve some of my earlier doubts, and I hope that if I state my own change
of views I may contribute to the thinking of others who are concerned about the
great questions raised by this trial.

The doubt which seemed to critics of the Nuremberg trial most fundamental was
whether the defendants could properly be held to answer a charge that they had
engaged in "the crime of aggressive war." Was there any such substantive
offense?

Many who replied affirmatively contended that "the crime of aggressive war" was
no different from the specific war crimes (such as killing a captured enemy
civilian) that had been defined in the Hague Convention of 1907. That is, they
argued that waging an aggressive war was a crime that had been outlawed by a
specific treaty or treaties; and that individuals who engaged in such conduct,
like individuals who engaged in the slaughter of captured civilians, were
triable by any tribunal established for the occasion by a warring power, and
were punishable by any penalty prescribed for the occasion by that power.

That argument seems to me unsound. It does not seem to me that an examination
of the pre-war treaties, conference proposals, diplomatic correspondence, and
juristic writings shows that there was a specific international covenant that
individuals who waged an aggressive war were criminals in the same sense that
there was a specific international covenant that individuals who killed
captured civilians were criminals.

But it is not sufficient to stop with that purely analytical approach. There
remains this inquiry: Is it just to declare, after hostilities have begun, that
planners of an aggressive war are criminal?

Those who believe that it is, make a twofold contention. First, they say that
when these defendants planned this war both they and everyone else would have
admitted that the planning of aggressive war was a violation of standards
which, whether or not they had been formulated like the Hague conventions, were
universally accepted by the international community in treaties and otherwise;
and that no one should be surprised to see such deliberate violations stamped
as criminal. Second, they say that international criminal law in its present
almost primitive state is similar to early domestic criminal law, and therefore
requires not only the application of enacted law and of judicial precedent, but
also the retroactive declaration of new law.

At first I was shocked by those contentions. I was prepared to assent to the
statement that the defendants deliberately violated standards which had been
widely accepted. But I hesitated to concede that any state or group of states
should have the power retroactively to affix the additional label "criminal" to
conduct which, when it occurred, was commonly regarded only as a violation of
accepted standards and of treaties. It seemed to me that to allow such
retrospective labeling opened the door to an arbitrary selection of offenders.
It struck at the roots of constitutional limitations on power and contradicted
the teachings of the philosophers of liberty. Moreover, while I was prepared to
assent to the proposition that some topics in international law could be, and
had been, developed by judicial tribunals declaring the law retroactively, I
was not aware that the particular branch of international law which dealt with
individual crimes had ever been thought to be susceptible of retroactive
codification by judges or by states.

2.

On further reflection I have come to the view that the points stated in the
last paragraph are not conclusive. I am now persuaded that in the formative
period of international law it is just for a representative group of power
retroactively to label as criminal, conduct which, when it occurred, was
universally regarded as a serious violation of generally accepted international
standards and treaties. To put it in a single sentence, the reasons for my
change are that the failure of the international community to attach the
criminal label to such universally condemned conduct would be more likely to
promote arbitrary and discriminatory action by public authorities and to
undermine confidence in the proposition that international agreements are made
to be kept, than the failure of the international community to abide by the
maxim that no act can be punished as a crime unless there was in advance of the
act a specific criminal law.

It is a choice of evil. And I do not claim that my present belief can be proved
to be correct. Essentially it is what the philosophers would call a value
judgment based on these considerations. If the powers had not agreed upon a
rational formula for indicting those who planned World War II, it is highly
probably that either some state or some unauthorized individuals would
arbitrarily and perhaps even ruthlessly have undertaken the punishment of
capriciously chosen Nazi chieftains. If the treaties against aggression which
had been negotiated prior to World War II were treated as mere statements of
intention, then post-war treaties against aggression, no matter how precisely
drafted, would have been regarded as imperfect obligations.

But, regardless of its provability, the scale of values which now seems to me
sound puts repugnance to retroactive legislation in a less important place than
repugnance to leaving unpunished serious violations of standards universally
recognized by the international community and embodied in treaties and like
international obligations. To guard against misapprehension, I should reiterate
that the scale applies only to grave departures from standards that have been
widely and formally accepted, and only when the conduct arises in the
international field where and while the organs of the international community
are so undeveloped and are so intermittent in their functioning that it is
impractical to expect the declaration of criminality to be made in advance of
the conduct.

Thus it now seems to me to have been "just," and even probably under some
civilized systems of law even "legal," to have charged the defendants with the
crime of aggressive war. But, in candor, I must add that I am not satisfied
that it was "legal" under American law. I can best express my reservation by
example. Suppose that Hess had been brought to the United States and had been
here charged with, tried on, and convicted of only the crime of aggressive war
by a military tribunal created by the President with or without the cooperation
of other nations; and suppose that, having been sentenced to jail in the United
States, he, like Yamashita, had sought a writ of habeas corpus form a United
States judge. Would he not have had a right to be released on the ground that
he was held in violation of the ex post facto clause of Article I, Section 9,
of the United States Constitution? That is, does not the United States
Constitution put at the very front of its scale of values a ban on retroactive
criminal laws?

Before turning to the next topic, I should note parenthetically that some
persons who shared my original view, that before the Nuremberg trial there was
no substantive "crime of aggressive war," say that even after the Nuremberg
trial they do not know what the crime is, because the victorious powers and
their court have not defined the crime of which the defendants were adjudged
guilty. To them the verdict implies no more than the proposition that the
victors are empowered to punish the vanquished. They say that there is no
definition as to when a war is "aggressive" and that there is no rule laid down
for distinguishing between the organizers and the participants in such an
aggressive war.

To this the answers are that the definition of "aggressive," like other legal
terms, will acquire content by exemplification; and the full meaning will
become clear only after sufficient cases have been brought before and
adjudicated by competent tribunals. It may be difficult at some future time to
determine whether a particular war is an aggressive war, but there was no
difficulty in deciding that the Nazi war was an aggressive war, since it would
be generally conceded that the term "aggressive war" at its least includes a
war like the Nazi war, which is begun by an attack by those who do not
themselves believe that they are in danger of immediate attack by others. And
although it may be difficult to say how far down the line of command
responsibility goes, responsibility certainly extends at least to those who,
knowing there is no danger, both plan and direct the unwarranted attack.

These answers would have been more evident if it had not been for the almost
absurd citations of Grotius and other jurists made by some supporters of the
Nuremberg proceedings. These supporters often seem to argue that Grotius said
(which, of course, he did not) that those who kill in the course of a war
commit a legal crime unless the war is a just war; and that where a war is
unjust, those who engage in it and kill their fellow men are murderers.
Grotius's definitions of just and unjust wars refer primarily not to mundane
but to divine justice. And he did not describe—few sensible people would
describe—as murderer the common soldier required to kill his enemy in the
course of an unjust war. Neither Grotius nor the powers who drafted the
Nuremberg charter nor the judges or prosecutors who participated at Nuremberg
have termed criminal those men who merely fought in a war not of their
making.

3.

Having shown why I now believe "the crime of aggressive war" is properly
regarded as a substantive offense, I turn to the next doubt which has disturbed
me: that is, whether that crime should have been tried before a tribunal
composed exclusively of judges of the four major victorious powers. Was it a
proper forum?

No one who has read the recent decision of the Supreme Court of the united
States in the Yamashita case will find difficulty in concluding that it was
according to law to try the defendants in a military rather than a civil
tribunal and to try them before judges who were drawn exclusively from the
victorious powers. But that conclusion leaves unanswered certain other
questions.

While, so far as I am aware, it was legally unobjectionable to have the
defendants tried by an English judge or a French judge or an American judge, or
any combination of them, can we fairly say it was unobjectionable to have the
defendants tried by a Russian judge on the *particular* charge of aggressive
war which was presented? Did not the charge refer to an aggressive attack on
Poland? And (while deeply sensible of the later horrible sufferings the
Russians underwent from an unprovoked attack by Germany on Russia itself) can
we say that the Russians (who in advance were apprised of the proposed German
attack on Poland and who participated in the division of the spoils resulting
from that attack) were suitable persons to participate in judgment upon the
charge that the Germans aggressively attacked Poland? This is not an issue (as
it is sometimes supposed to be) whether it is just to prosecute one group of
criminals (Germans) and not another (Russians). It is the simper issue whether
an apparent confederate is to sit in judgment on an alleged criminal.

While it was not legally necessary to have invited neutrals and even
distinguished anti-Nazi Germans to sit in judgment at the trial, would it not
have been politically wiser to have done so, since the type of issues raised by
a charge of the crime of aggressive war, unlike the issues raised by a charge
of strict war crimes, are so susceptible of national bias? Would not a tribunal
which included some judges free of any connection with the victims of the
aggressive attack have furnished a sounder precedent?

To these questions the usual, but not entirely satisfactory, answers are that
the authors of the Nuremberg procedure believed that distinguished neutrals
would not accept appointment, and that the Russians would not have sat with
neutrals.

Two other political, rather than legal, questions remain. First, was it
desirable to include this charge in the Nuremberg indictment when there were
enough other charges of a more orthodox character upon which the defendants
were being tried and were likely to be hanged? Second, was it better to have
these defendants tried before a military court or to have them disposed of by a
more summary executive procedure?

If the defendants had been tried solely on the grounds that they had engaged in
war crimes in the strict sense and in crimes against humanity, the practical
result for the men in the dock at Nuremberg would (with the single exception of
Hess) have been precisely the same as it actually turned out to be. Hess is the
only defendant who was convicted of the crime of aggressive war and the crime
of conspiracy but was not convicted of other crimes as well.

Moreover, if the defendants had been tried solely on the grounds that they had
engaged in war crimes in the strict sense and in crimes against humanity, there
would from the outset have been a far greater degree of unanimity of
professional opinion in support of the Nuremberg trial.

There were, however, countervailing considerations, which could well be thought
more significant. If the defendants were charged only with the strict war
crimes and not with the crime of aggressive war, it would have deeply offended
the public sense of justice, for the public regarded the planning of the war as
the greatest of crimes. To the general public it would have seemed grossly
inappropriate to punish Goring only for killing a few named individuals, and
not for starting a war in which millions were killed.

Furthermore, if the powers had not included in the Nuremberg indictment a
charge that the defendants had committed the crime of aggressive war, not only
would they have missed the opportunity to establish the doctrine that there is
a world law against aggressive war, but their very silence and timidity would
have weakened the force now, and perhaps for all time, of such declarations as
had heretofore been made that aggressive war was outlawed.

There remains for discussion the problem whether it would have been politically
wiser to have dealt with the Nuremberg defendants by a proceeding that was not
judicial but frankly executive.

Before the Nuremberg trial began, those who, like myself, originally opposed a
judicial proceeding stressed the following points, among others. There was a
grave danger that the trial itself could not be conducted in an orderly way.
The memories of the disturbances of the Laval treason trial and the Washington
sedition trial were fresh in men's minds. There seemed no likelihood that the
trial would be so arranged that the defendants would be given adequate
opportunity to produce evidence and to examine and cross-examine witnesses.
There was skepticism as to whether any defendant had a chance to be acquitted,
particularly since it appeared that the tribunal might start with a presumption
of guilt rather than a presumption of innocence. And it was feared that the
tribunal would focus on the propaganda aspects of the trial and would be unduly
concerned with the effect of the trial upon the public opinion of the outside
world. Cumulatively, these considerations made many commentators doubtful
whether the court could act as a court should act. And—though this was less
important—it made commentators fear that the trial instead of persuading the
Germans of today or tomorrow that our side was just, would persuade them that
we were hypocrites disguising vengeance under the facade of legality.

To avoid such dangers, these critics suggested that victorious powers should
frankly state that for reasons which would be announced to the world, and which
would include a recital of the wrongs the defendants had perpetrated and the
menace they still presented, the powers proposed to deny them further liberty
and, if necessary, to take their lives. Before such announcement was put into
effect, the persons named for punishment would have an adequate opportunity to
present any evidence they had that they had been erroneously named or charged
with wrongdoing. It was believed that a course so drastic and so plainly
premised on an exceptional situation would never be thought, as a trial might
be thought, suitable for incorporation in the permanent fabric of domestic
systems of justice.

Now that the trial has been held, many of these forebodings are shown to have
been wide of the mark. Judged as a court trial, the Nuremberg proceedings were
a model of forensic fairness. Lord Justice Lawrence and his associates acted
with dignity and firmness and with eyes directed only to such matters as judges
ought to consider.

Moreover, the very length of the trial has shown that those who originally
favored a summary proceeding had overestimated the knowledge which the Allies
had in advance of the trial. A year ago they did not have the specific
information necessary promptly to prepare a reliable recital of who were the
chief offenders and what were their offenses. Indeed, if it had not been for
the trial and the diligent efforts of the staff of able lawyers and
investigators, acting promptly and in response to the necessities of legal
technique, the important documents in which the defendants convicted themselves
might never have been uncovered. Thus the trial gave the victorious powers the
adequate record which they required for proper disposition of the defendants
and simultaneously gave historians much of the data which the world will
require for proper evaluation of the causes and events of World War II.

But the outstanding accomplishment of the trial which could never have been
achieved by any more summary executive action, is that it has crystallized the
concept that there already is inherent in the international community a
machinery both for the expression of international criminal law and for its
enforcement. The great powers of the world have agreed that it is in accordance
with justice for a group of nations to establish on an ad hoc basis a tribunal,
first, to review the state of world opinion on conduct, in order to determine
whether that conduct, when it occurred, was so universally condemned as an
international wrong that it can be called a "crime"; and second, to apply that
determination to individuals.

No doubt such an ad hoc method is not satisfactory as a covenant made by all
the powers in advance of wrongful conduct—a covenant describing such conduct,
fixing the tribunal which shall try offenders and fixing the penalty which
shall be imposed. But until the world is prepared to follow the more
satisfactory method, it has every reason to be profoundly grateful to Mr.
Justice Jackson and his associates, who, in the face of enormous practical
difficulties and widespread theoretical criticisms, persisted until they
demonstrated the justice of the ad hoc method adopted at Nuremberg.